COURT OF APPEALS DECISION DATED AND RELEASED November 7, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3554
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
GARY CUMMINS and JEAN
CUMMINS,
Plaintiffs-Appellants,
v.
DALE L. SCHLUTER and
SHARON SCHLUTER,
RUDOLPH P. REGEZ and
UNKNOWN REGEZ, IND d/b/a
AN-BE PARTNERSHIP,
EDWIN ROELLI and UNKNOWN
ROELLI, IND d/b/a
AN-BE PARTNERSHIP, AMERICAN
FAMILY INSURANCE
GROUP, and DARLINGTON
MUTUAL INSURANCE
COMPANY,
Defendants-Respondents,
PAUL CULLEN and PINE
HILL PRODUCE COMPANY,
INC.,
Defendant.
APPEAL from a judgment
of the circuit court for Grant County:
JOHN R. WAGNER, Judge. Reversed
and cause remanded.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Gary Cummins and Jean Cummins appeal from a summary
judgment dismissing their complaint against various property owners and
renters, and their insurers. The
Cumminses sued for crop damage caused by a herd of sheep that were kept on
property near but not adjacent to their rented crop land. The trial court dismissed the complaint,
under § 90.04, Stats.,
because the sheep entered the Cumminses' land through a fence that the
Cumminses failed to keep in repair.
Because we conclude that the plain meaning of § 90.04 does not bar
this action, we reverse and remand for further proceedings.
The facts are
undisputed. An-Be Partnership rented
land to Pine Hill Produce Company for the purpose of grazing sheep. The sheep escaped onto the property of Dale
and Sharon Schluter through a defective fence, and from the Schluter property
entered the Cumminses' land through another defective fence on the
Schluter/Cummins property border. The
Cumminses then sued the Schluters, An-Be, Pine Hill and others for the
resulting crop damage, based on the failure to maintain the fence on the
Schluter/An-Be property line.
Section 90.04, Stats., entitled "Effect of fences
on action for trespass by animals," provides in relevant part that
"owners of lands who do not maintain and keep in repair lawful partition
fences shall not be entitled to recover any damages whatever for trespasses by
the animals of owners of any adjoining lands...." The trial court dismissed the action based
on that language in the statute and the Cumminses' failure to maintain the
Cummins/Schluter fence.
Section 90.04, Stats., does not bar the Cumminses'
lawsuit despite the unrepaired fence between their property and the Schluters'
property. If the meaning of a statute
is plain, we look no further in construing it.
Tenpas v. DNR, 141 Wis.2d 599, 602, 415 N.W.2d 853, 854
(Ct. App. 1987), rev'd on other grounds, 148 Wis.2d 579, 436 N.W.2d 297
(1989). In plain terms, the statute
provides that an unrepaired partition fence bars recovery for trespasses only
if the animals belong to the owners of adjoining lands. Since the sheep are not owned by the
Schluters, the owners of the land adjoining the Cumminses' land, § 90.04 does
not bar this action. By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.